In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Monday, 4 May 2015

Some News from the U.S. Copyright Office

U.S. Copyright Office
Publishes Its Online Fair Use Index

The U.S. Copyright Office recently published online its Fair Use Index. It explains on its
site that “[t]he goal of the Index is to make the principles and application of fair
use more accessible and understandable to the public by presenting a searchable
database of court opinions, including by category and type of use (e.g., music,
internet/digitization, parody). The Index was created “to help both lawyers and non-lawyers better understand the types of
uses courts have previously determined to be fair—or not fair.”

The Index allows visitors to search a database of fair use judicial
decisions from federal jurisdictions, district courts, courts of appeal and the
U.S. Supreme Court. The Index does not, however, include all judicial opinions
on fair use, but will be updated and expanded periodically. When clicking on a
particular decision, a new page opens, which is a pdf document about the case, informing
the reader about its date, court, key facts, issue, holding, tags and outcome.
What is particularly interesting is the ability to search fair use cases for specific
categories, such as “parody” or “music.”

This is a welcome initiative, as fair use is always a mixed
question of law and facts and there is no way to predict with certainty if a
particular use will be deemed fair by the courts. However, one can regret that
the Index does not include the full text of the courts’ opinions, but only
their citations, which can be used to easily search for them online, including on
free sites such as Google Scholar or Justia.

House Judiciary
Committee Hearing: The Register’s
Perspective on Copyright Review

In her 36-page written
statement, Ms. Pallante wrote about the role and functioning of the
Copyright Office and listed the “policy
issues that are ready for legislative process” (Pallante, p. 10). These
issues are: music licensing, small claims, felony streaming, section 108 on
library exceptions, orphan works, resale royalty, improvements for persons with
print disabilities, and section 1201 on regulatory presumption for existing
exemptions.

Music Licensing

Indeed, the Copyright Office published last February its Copyright and the Music Marketplace
report, which suggested some changes in music licensing such as fully
federalizing pre‐1972 sound recordings, which are currently only protected
under state law, a situation which, for the Copyright Office, “impedes a fairmarketplace.”

Small Claims

The Subcommittee on Courts, Intellectual Property & the
Internet held a hearing
in July 2014 about copyright remedies, where the issue of small courts was
discussed (see transcript here).
Ms. Pallante quoted Representative Coble, who said during this hearing that “smaller copyright owners find it not worth
their time or money” to litigate (Pallante, p. 12). As early as 2013, the
Copyright Office recommended
the creation of an administrative tribunal, to serve as an alternative to
federal courts in some copyright infringement cases. It would be interesting to
see if this tribunal will finally be created.

Felony Streaming

Ms. Pallante also recommended that Congress “bring the criminal penalties for unlawful
streaming in line with those for other criminal acts of copyright infringement,”
that is, charging people engaging in unlawful internet streaming with a felony,
not a misdemeanor as it is the case now (Pallante, p. 13).

Section 108 Library
Exceptions

As for Section 108, it “fails to address the ways in which
libraries really function in the digital era, including the copies they must
make to properly preserve a work and the manner in which they share or seek to
share works with other libraries” (Pallante p. 14). The Copyright Office is
of the opinion that “Section 108 must be
completely overhauled” and is currently preparing a discussion draft
(Pallante, p. 15).

Orphan Works

Ms. Pallante also wrote that “[o]rphan works is ripe for a
legislative solution” and affirmed that “the Copyright Office favors a legislative framework in which liability
is limited or eliminated for a user who conducts a good-faith, diligent search
for the copyright owner” (Pallante, p. 16). However, the rights of the
authors, copyright owners and their heirs must be preserved as well.

Resale Royalty

The Copyright Office agrees that resale royalties rights (or
droit de suite) may benefit certain
visual artists, who are now at a disadvantage under current U.S. law, as they
cannot take advantage of the value of their work going up. As such, “there are sound policy reasons to address
this inequity, but … the administrative and enforcement costs of a resale right
might be substantial.” Therefore, the Copyright Office suggests that
Congress should “consider a number of
possible alternative or complementary options for supporting visuals artist
within the broader context of art industry norms, art market practices, and
other pertinent data,” but Ms. Pallante did not elaborate further. (Pallante,
p. 19).

Ms. Pallante also listed other “policy issues that warrant near-term study and analysis” (p. 21).
They are other issues of Section 1201, such as its anticircumvention
provisions, Section 512 on notice and takedown, and safe harbor, mass
digitization, and moral rights.

“would allow circumvention of TPMs [ Technological Protection
Measures] protecting computer programs
that control the functioning of a motorized land vehicle, including personal
automobiles, commercial motor vehicles, and agricultural machinery, for
purposes of lawful diagnosis and repair, or aftermarket personalization,
modification, or other improvement. Under the exemption as proposed,circumvention would be allowed when
undertaken by or on behalf of the lawful owner of the vehicle.”

An IP counsel for John
Deere, manufacturer of agricultural, construction, and foresting equipment,
recently sent comments
to the Copyright Office about this proposed exemption, stating that it is
overbroad and that it would violate vehicle manufacturers’ copyright in their
software, and that the user of the tractor merely has an implied license for
the life of the vehicle to operate it. Congress already passed last year the Unlocking Choice and Wireless Competition
Act, which allows consumers to unlock their cell phones. Will Congress
also unlock tractors? I will keep you up to date on this important issue, of
course. Vroom.

DMCA Notice and Takedown

Ms. Pallante also wrote about the DMCA safe harbors.
As the courts have sometimes interpreted these provisions “in ways that some believe run counter to the very balance that the DMCA
sought to achieve,” the Copyright Office believes it is time for a “formal and comprehensive study” on the
issue. Ms. Pallante mentioned the cost of sending DMCA notices, and how
difficult it may be for copyright holders to enforce their right under this
take down system.

Mass Digitization

The Copyright Office is completing its analysis of copyright
issues raised by mass digitization projects, such as Google Books. Ms. Pallante noted that the problem with mass
digitization is “a lack ofefficiency
in the licensing marketplace,” as
it is both costly and cumbersome to secure the sometimes millions of
authorizations, to the point that rights clearance is a burden (Pallante, p. 26).Even though fair use maybe of help, “the complexity of the
issue and the variety of factual circumstances that may arise compel a
legislative solution” (Pallante, p. 27). The Copyright Office “as part of its orphan works and mass
digitization report, …will recommend a voluntary “pilot program” in the form of
extended collectivelicensing (“ECL”)
that would enable full-text access to certain works for research and education
purposes under a specific framework set forth by the Copyright Office, with
further conditions to be developed through additional stakeholder dialogue and
discussion” (Pallante p. 27).

Moral Rights

The Copyright Office “believes
that [the issue of moral rights] isa
critical topic for further analysis.” Individual authors face moral right
issues, such as attribution and the right to say no to particular uses, and Ms.
Pallante noted that some academics questioned
the strength of moral rights in the U.S. after the Supreme Court Dastar Corp. v. Twentieth Century Fox
FilmCorp. case.

“In the Office’s view, any comprehensive review of the functioning of
the copyright system must give serious and sustained attention to the
individual rights of authors—apart from corporate interests—and the need to
ensure that those personal interests are adequately protected. For this reason,
the Office believes that further formal study of moral rights in the United
States is an appropriate next step in the congressional process” (Pallante
p. 28).

It seems that the year ahead may see, if not legislation, at
least some interesting discussions about U.S. copyright.

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